1. This is an undefended cause promoted by the wife and commenced on 18-1-1966 in which she claimed at the hands of the learned District Judge, 24-Parganas a divorce by reason of her husband's desertion and adultery with a married woman named Mrs. A. E. Wollocombe.
2. The petitioner alleged that the cause of action had arisen since 1954 but that the wife 'owing to short of funds and other various unavoidable circumstances' could not file the petition earlier and begged to be excused. It prayed the Court to pronounce a decree declaring the marriage, solemnised on May 5, 1948 according to Christian rites, dissolved. The petition came on for proof. The respondent husband did not contest. The wife along with another woman deposed but they were not cross-examined. Adultery and desertion were proved. The learned Judge decreed the suit ex parte subject to confirmation by this Court
3. The only and all important question in this reference is, has the petitioner been guilty of unreasonable or culpable delay in presenting the petition; in other words, whether we should confirm the decree of dis-solution of marriage, in the absence of any finding or even observation by the Court be-low about the delay of more than 12 years in presenting the petition and even when not a word is said by the wife petitioner in verbal evidence about the shortage of fundi or about other various and unavoidable circumstances causing the delay in filing the petition.
4. I have had the great advantage of the Other memben of the Bench in preparing this opinion, which they concur in. I do not think it necessary to make a prolonged historical enquiry into the origin of the discretionary bar of undue delay but I have indicated below the principles and the chief considerations which ought to be weighed by the Court in such cases as helping to arrive at a just conclusion.
5. The very first thing which the Courts are to look at, is whether there has been delay in presenting a petition. In the instant case, it appears that for a period of more than 12 years the illicit co-habitation, which produced two or three issues, and on which the petitioner founded her suit as an intolerable grievance, existed under her close observations. II is a significant fact that the interval between the date and knowledge of the fact of adultery and the exhibition of them to the Court, is relatively long. The degree of delay is prima facie unreasonable, and not meritorious. There is a considerable guidance from the English decisions on the matter and there are opinions of able Judges in this country. See Adelaide Mande Tobias v. William Albert Tobias, : AIR1968Cal133 where longer periods of delay were condoned but my own belief is that no case is likely to be complete precedent for the case in hand. The variety of details, in such matters, is most important, which makes the whole difference.
6. The learned Judge in the instant case did not consider as to whether the wife was satisfied, content and well pleased with the condition of things prevailing. It is difficult to know of the tests of inward feelings of a wife but the outward signs of act or speech are important factors to consider. The Court should have directed itself to enquire as to what did the wife do or how did she act to abate the evil and what steps did she take to assert her rights? Did the wife make an honest attempt to reclaim the guilty husband from his evil ways? Were the expectations operating on the wife's mind that she would be released from the bond of matrimony by the husband's death? Did she 'slumber with sufficient comfort' over her injury? Was she actively aware or even passively conscious? Was the application not presented in deference to the wishes of the mother or some such person, who was anxious to avoid the scandal of the family? Did she make any complaint or offer any remonstrance? Did the lie by all these years without showing sufficient reason? It is sometimes said, and that is also true that the poor wife could not take legal proceedings earlier but an angry ejaculation, a menace or hard words leveled at the adulteress they are within the easy reach of each injured wife and too natural for their absence to be overlooked if the wife was really outraged by her husband's misconduct. It is further true that the higher Court should have reluctance in interfering with the exercise of the discretion by the Trial Court. But this cautious discretion should have been exercised after considering the above principles and also the interest if any, of the children of the marriage, the prospect of the future marriage, the reasonable prospect of reconciliation between the parties and the interest of the community at large. In short, there should not be indifference to adultery, insensibility to the injury and insincerity of the complaint. (I use the neutral terms advisedly.) They throw doubt on the bona fides of the application and on the reliability of the evidence of the complaining spouse.
7. We look in vain in this case for any treatment by the learned Judge of the cause of the delay though there might be some reason in the background -- some collateral reason which we do not know as yet. The delay is not answered by the Court below by the petitioner's pecuniary circumstance, even though it is stated in the application. It would not be rash to assume that the learned Judge did not make the slightest approach to the question of dilatoriness, rather was deeply impressed by the deplorable behaviour of the husband and he perhaps thought that a person who had inflicted this cruel wrong upon a woman, ought not to be heard to object to her complaining not earlier and of her complaining now.
8. I am conscious that it is undesirable, as it surely is in the public interest, to keep one adulterous spouse fettered in the bond of wedlock and to keep alive the defunct marriage. We took time to consider whether we should get rid of the mockery of this marriage here and now, and would destroy the vinculam of marriage but the maintenance of the balance between the respect for the binding sanctity of the marriage and the social conditions and the wrongful exercise of the discretion by the Trial Court, having Riven no weight to the relevant consideration of delay, prevented us from doing so all at once. The purpose of the law and I must recall to myself the statutory duty which is imposed on the Court -- is, to encourage lawful wedlock and to set the face against adultery.
9. Having considered the facts of this case and the principles on which the discretion should be exercised, I do not think that I should be exercisine the discretion properly or judicially, if I exercise it in favour of either party. To my thinking, it is possible to exercise our discretion in only one way and that is by passing an order of remit to the Court below. It demands a full and satisfactory explanation by the Court below of the delay in presenting the petition, after giving opportunities to the parties to give fresh evidence so that the grave question of delay might be properly investigated. We are not allowing the delay to go the full length of barring the remedy but we insist on the Court below to scrutinize whether the wife had a real grievance, a present wrong and whether she had come with clean hands and above all whether the wife had a sincerity of purpose. The Court below should remember that lapse of time or delay is not an absolute bar to relief and it is always open to the petitioner to explain the delay. Poverty or shortage of funds is no doubt a sufficient explanation for the delay but it must he convincingly proved. Accordingly this Court must withhold from Mrs. Baker, the petitioner, for the present, the relief of the decree being made absolute.
10. It is satisfactory that the conclusion as to the law applicable to the case corresponds with the justice of the matter.
11. There will be no order for costs.
A.C. Sen, J.
12. I agree.
S.N. Bagchi, J.
13. I agree.